Chapter 512 Oregon Laws 2005

AN ACT

HB 2136

Relating to Oregon Military Department; creating new provisions; amending ORS 181.539, 183.315, 396.105, 396.125, 396.145, 396.160, 396.305, 396.360, 398.002, 398.008, 398.012, 398.058, 398.060, 398.062, 398.083, 398.104, 398.106, 398.108, 398.110, 398.112, 398.116, 398.126, 398.132, 398.135, 398.136, 398.209, 398.224, 398.226, 398.258, 398.282, 398.302, 398.416, 399.095 and 399.515; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 396.125 is amended to read:

396.125. (1) The Governor of the state, by virtue of office, is the Commander in Chief of the militia of the state, and may issue military regulations for the [government] governance of the militia. Military regulations issued by the Governor shall have the same force and effect as the provisions of this chapter and ORS chapters 398 and 399. In issuing such regulations, the Governor may give consideration to the laws and regulations of the United States relating to the organization, discipline and training of the militia, to the provisions of this chapter and ORS chapters 398 and 399 and to the laws and regulations governing the United States Army and United States Air Force. The military [rules and] regulations in force on [May 22, 1961,] the effective date of this 2005 Act shall remain in force until new [rules and] regulations are approved and promulgated.

(2) The Governor may delegate to the Adjutant General authority to issue the regulations described in subsection (1) of this section for the governance of the militia.

SECTION 2. ORS 396.160 is amended to read:

396.160. (1) The Adjutant General shall be the Director of the Oregon Military Department, and Chief of Staff to the Governor. The Adjutant General shall be the Commander of the Oregon National Guard.

(2) The Adjutant General shall be charged, under the direction of the Governor, with the supervision of all matters pertaining to the administration, discipline, mobilization, organization and training of the Oregon National Guard and the Oregon State Defense Force.

(3) The Adjutant General shall perform all duties required by the laws of the United States and of the State of Oregon, and the regulations issued thereunder, now or hereafter promulgated.

(4) The Adjutant General may employ such deputies, assistants and other personnel as the Adjutant General shall deem necessary to assist the Adjutant General in the performance of those duties required of the Adjutant General as Director of the Oregon Military Department. The Adjutant General shall fix the compensation of such deputies, assistants and other personnel in accordance with then existing state laws, budgetary restrictions and employment policies.

(5) The Adjutant General shall supervise the preparation and submission of all returns and reports pertaining to the militia of the state as may be required by the United States.

(6) The Adjutant General shall be the channel of official military correspondence with the Governor, and shall, on or before November 1 of each year, make a report to the Governor of the transactions, expenditures and condition of the Oregon National Guard. The report shall include the report of the United States Property and Fiscal Officer.

(7) The Adjutant General shall be the custodian of records of officers and enlisted personnel and all other records and papers required by law or regulations to be filed in the office of the Adjutant General. The Adjutant General may deposit with the State Archivist for safekeeping in the official custody, records of the office of the Adjutant General that are used for historical purposes rather than the administrative purposes assigned to the office of the Adjutant General by law.

(8) The Adjutant General shall attest and record all military commissions issued by the Governor and keep a roll of all commissioned officers, with dates of commission and all changes occurring in the commissioned forces.

(9) The Adjutant General shall record, authenticate and communicate to troops and individuals of the militia all orders, instructions and regulations.

(10) The Adjutant General shall cause to be procured, printed and circulated to those concerned all books, blank forms, laws, regulations or other publications governing the militia needful to the proper administration, operation and training thereof or to carry into effect the provisions of this chapter and ORS chapters 398 and 399.

(11) The Adjutant General shall have an appropriate seal of office and affix its impression to all certificates of record issued from the office of the Adjutant General.

(12) The Adjutant General shall render such professional aid and assistance and perform such military duties, not otherwise assigned, as may be ordered by the Governor.

(13) The Adjutant General shall, in time of peace, perform the duties of quartermaster general and chief of ordnance.

(14) The Adjutant General may issue regulations as described in ORS 396.125 (1) if authority is delegated to the Adjutant General by the Governor.

SECTION 3. ORS 396.105 is amended to read:

396.105. (1) The militia of the state shall be divided into the organized militia and the unorganized militia.

(2) The organized militia shall be composed of the Oregon Army National Guard and the Oregon Air National Guard, which forces together with an inactive National Guard shall comprise the Oregon National Guard; the Oregon State Defense Force whenever such a state force shall be duly organized; and such additional forces as may be created by the Governor.

(3) The unorganized militia shall consist of all able-bodied [male] residents of the state between the ages of 18 and 45 who are not serving in any force of the organized militia or who are not on the state retired list and who are or who have declared their intention to become citizens of the United States; subject, however, to such exemptions from military duty as are created by the laws of the United States.

SECTION 4. ORS 396.145 is amended to read:

396.145. (1) The military staff of the Governor shall consist of the Chief of Staff to the Governor, the Military Council and such personal aides-de-camp as the Governor shall deem necessary.

(2) The Adjutant General shall be Chief of Staff to the Governor.

(3) The Military Council hereby is established as an advisory board to the Governor for the purpose of advising the Governor in all matters of military interest to the state. It shall consist of the Adjutant General and not [less] fewer than 6 nor more than 10 officers of the Oregon National Guard selected for their knowledge of the service. The Oregon Army National Guard and the Oregon Air National Guard shall be represented on the Military Council in proportion to their total strength.

(4) Personal aides-de-camp to the Governor may be selected from the commissioned officers of the Oregon National Guard or from reserve officers of the Armed Forces of the United States who are residents of Oregon and who are not serving on extended active duty. Officers detailed under this section shall not be relieved from their ordinary duties except when actually on duty with the Governor.

(5) The military staff of the Governor shall, in addition to its other duties, perform such ceremonial functions and duties as the Governor may prescribe.

SECTION 5. ORS 398.002 is amended to read:

398.002. As used in this chapter and ORS 396.120, 396.145,399.205 and 399.515, unless the context requires otherwise:

(1) “Accuser” means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, or any other person who has an interest other than an official interest in the prosecution of the accused.

(2) “Active state duty” means full-time duty in the active military service of the state under an order of the Governor issued under authority vested in the Governor by law, and includes travel to and from such duty. The term “active state duty” also includes all Oregon National Guard personnel serving on active duty under Title 32 U.S.C. 502 (f).

(3) “Commanding officer” includes only commissioned officers in positions of command.

(4) “Commissioned officer” includes a commissioned warrant officer.

(5) “Component” includes the Army National Guard, the Air National Guard and the Oregon State Defense Force.

(6) “Confining authority” means the Governor, a military court or a convening authority or commanding officer designated by the Adjutant General.

[(6)] (7) “Convening authority” [includes, in addition to the person who convened the court, a commissioned officer commanding for the time being, or a successor in command] means a person authorized under this chapter to convene a court-martial.

[(7)] (8) “Duty status other than active state duty” means [and includes] any [periods of] drill periods and such other training or service, other than active state duty, as may be required under state or federal laws, regulations or orders, and [includes] travel to and from such duty.

[(8)] (9) “Enlisted member” means a person in an enlisted grade.

[(9)] (10) “Grade” means a step or degree, in a graduated scale of office or military rank, that is established and designated as a grade by law or regulation.

[(10)] (11) “Judge advocate” means the State Judge Advocate or an Assistant State Judge Advocate.

[(11) “May” is used in a permissive sense. However, the words “no person may...” mean that no person is required, authorized or permitted to do the act prescribed.]

(12) “Military” refers to any or all of the armed forces.

(13) “Military court” means a court-martial, a court of inquiry or a provost court.

(14) “Military judge” means an official of a general or special court-martial detailed in accordance with ORS 398.135.

(15) “Officer” means commissioned or warrant officer.

(16) “Organized militia” means the [National Guard of the state, as defined in section 101(3) of title 32, United States Code, and the Oregon State Defense Force] organized militia described in ORS 396.105.

(17) “Rank” means the order of precedence among members of the armed forces.

(18) “Record,” when used in connection with the proceedings of a court-martial, means:

(a) An official written transcript, written summary or other writing relating to the proceedings; or

(b) An official audiotape, videotape or similar material from which sound or sound and visual images depicting the proceedings may be reproduced.

[(19) “Shall” is used in an imperative sense.]

[(20)] (19) “State Judge Advocate” means the commissioned officer responsible for supervising the administration of [the] military justice and general military legal matters in the organized militia.

[(21)] (20) “Superior commissioned officer” means a commissioned officer superior in rank or command.

(21) “Uniform Code of Military Justice” means chapter 47 (commencing with section 801) of Title 10 of the United States Code and regulations adopted thereunder, together with the Manual for Courts-Martial, United States, 1984 (Executive Order 12473 of July 13, 1984, as amended).

SECTION 6. ORS 398.008 is amended to read:

398.008. (1) If any commissioned officer dismissed by order of the Governor makes a written application for trial by court-martial, setting forth under oath that the officer has been wrongfully dismissed, the Governor or the Adjutant General, as soon as practicable shall convene a general court-martial to try that officer on the charges on which the officer was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and the officer shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which the officer is charged. The court-martial may, as part of its sentence, adjudge the affirmance of the dismissal; but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, does not include dismissal, the Adjutant General shall substitute for the dismissal ordered by the Governor a form of discharge authorized for administrative issue.

(2) If the Governor or the Adjutant General fails to convene a general court-martial within six months from the presentation of an application for trial under this chapter, the Adjutant General shall substitute for the dismissal ordered by the Governor a form of discharge authorized for administrative issue.

(3) If a discharge is substituted for a dismissal under this chapter, the Governor alone may reappoint the officer to such commissioned grade and with such rank as, in the opinion of the Governor, that former officer would have attained had the officer not been dismissed. The reappointment of such a former officer may be made only if a vacancy is available under applicable tables of organization. All time between the dismissal and the reappointment shall be considered as actual service for all purposes.

(4) If an officer is discharged from the organized militia by administrative action or by board proceedings under law, or is dropped from the rolls by order of the Governor, the officer has no right to trial under this section.

SECTION 7. ORS 398.012 is amended to read:

398.012. (1) The Governor, on the recommendation of the Adjutant General, shall appoint an officer of the organized militia as State Judge Advocate. To be eligible for appointment, an officer must:

(a) Be a member in good standing of the Oregon State Bar [of the highest court of the state and];

(b) [must] Have been a member of the Oregon State Bar [of the state] for at least five years; and

(c) Meet the qualifications for a judge advocate under the Uniform Code of Military Justice.

(2) The Adjutant General may appoint as many Assistant State Judge Advocates as the Adjutant General deems necessary[, which]. The Assistant State Judge Advocates shall be officers of the organized militia and members of the Oregon State Bar [of the state]. However, the Adjutant General may appoint temporary Assistant State Judge Advocates for a period not to exceed 12 months. An individual appointed as a temporary Assistant State Judge Advocate shall be an officer of the Oregon State Defense Force and shall be legally trained but is not required to be admitted to the practice of law by the Supreme Court of this state. The legal services performed by temporary Assistant State Judge Advocates shall be limited to those legal services that may be performed by legal assistants consistent with ORS 9.160.

(3) The State Judge Advocate or assistants shall make frequent inspections in the field for supervision of the administration of military justice and general military legal matters.

(4) Convening authorities shall at all times communicate directly with their staff judge advocate or legal officers in matters relating to the administration of military justice and general military legal matters; and the staff judge advocate or legal officer of any command is entitled to communicate directly with the staff judge advocate or legal officer of a superior or subordinate command, or with the State Judge Advocate.

(5) [No] A person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel or investigating officer, or who has been a witness for either the prosecution or defense in any case, may not later act as staff judge advocate or legal officer to any reviewing authority upon the same case.

(6) A judicial officer, as defined by ORS 1.210, is not prohibited, by reason of holding that office, from performing all acts necessary or incumbent to the authorized exercise of duties as a [State] judge advocate or [legal officer] as a member of the Military Council.

SECTION 8. ORS 398.058 is amended to read:

398.058. (1)(a) Except as provided in paragraph (b) of this subsection, any person subject to this chapter charged with an offense under this chapter may be ordered, as a priority prisoner, into arrest or confinement, as circumstances may require[; but when].

(b) A person subject to this chapter charged only with [an] a minor offense normally tried by a summary court-martial or subject to punishment under ORS 398.083[, such person shall] may not ordinarily be placed in confinement.

(c) The offense described under ORS 398.322 is not a minor offense for the purposes of this subsection.

(2) When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform the person of the specific wrong of which the person is accused and to try the person or to dismiss the charges and release the person.

(3) When a person subject to this chapter is placed in confinement prior to summary court-martial or disposition under ORS 398.083, the person shall be conditionally released pending disposition of the charges.

(4) A person described in subsection (3) of this section may be reconfined if the person violates the conditional release. The person violates the conditional release if the person fails to attend drill periods, periods of active duty training, annual training, other periods determined by the confining authority or hearings related to the pending charges or other conditions imposed by the confining authority.

(5) As used in this section, “priority prisoner” means a person subject to this chapter who:

(a) Has been ordered into confinement by a confining authority;

(b) Is received by a keeper, officer, warden or other person in charge of the county jail, penitentiary, prison or other facility in which the person has been ordered confined; and

(c) May be released only upon order of the confining authority.

SECTION 9. ORS 398.060 is amended to read:

398.060. (1) Confinement other than in [a guard house] an authorized military confinement facility, whether before, during or after trial by a military court, shall be executed in [civil jails] county jails, penitentiaries or prisons designated by the Governor or by such persons as the Governor may authorize to act.

(2) If no designation is made under subsection (1) of this section, the person shall be confined in a county jail.

(3) Confinement under this section shall be without requirement of payment of any fee or charge for confining the person.

SECTION 10. ORS 398.083 is amended to read:

398.083. (1) Under such [rules] regulations as may be prescribed by the Governor or the Adjutant General, limitations may be placed on the powers granted by this section with respect to the kind and amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this section to an accused who demands trial by court-martial, and the kinds of courts-martial to which the case may be referred upon such a demand. However, punishment may not be imposed upon any member of the organized militia under this section if the member has, before the imposition of such punishment demanded trial by court-martial in lieu of such punishment. [Rules] Regulations may be prescribed by the Governor or the Adjutant General with respect to the suspension of punishments authorized under this section. If authorized by regulations prescribed by the Governor or the Adjutant General, the Governor, the Adjutant General[,] or an officer of a general rank in command may delegate powers under this section to a principal assistant who is a member of the organized militia.

(2) Subject to subsection (1) of this section, any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial:

(a) Upon officers of the command:

(A) Restriction to certain specified limits, with or without suspension from duty, for not more than [15] 30 consecutive duty or drill days, the punishment to be completed within 90 days of the date punishment was imposed.

(B) If imposed by the Governor, the Adjutant General[,] or an officer of a general rank in command:

(i) Arrest in quarters for not more than [15] 30 consecutive duty or drill days, the punishment to be completed within 90 days of the date punishment was imposed.

(ii) Forfeiture of [pay of] not more than [two-thirds] one-half of one month’s active duty base pay for [three] two months.

(iii) Restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive duty or drill days, the punishment to be completed within 90 days of the date punishment was imposed.

(iv) Detention of not more than one-half of one month’s active duty base pay for three months.

(b) Upon other military personnel of the command:

(A) Forfeiture of [pay of] not more than [two-thirds of one month’s pay for one month] seven days’ active duty base pay;

(B) Reduction to the next inferior pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction;

(C) Extra duties, including fatigue or other duties, not to exceed two hours per day, including holidays, for not more than [15] 14 consecutive duty or drill days, the punishment to be completed within 90 days of the date punishment was imposed;

(D) Restriction to certain specified limits, with or without suspension from duty, for not more than [15] 14 consecutive duty or drill days, the punishment to be completed within 90 days of the date punishment was imposed; [or]

(E) Correctional custody for not more than seven consecutive duty or drill days, the punishment to be completed within 90 days of the date punishment was imposed;

(F) Detention of not more than 14 days’ active duty base pay; or

[(E)] (G) If imposed by an officer of the grade of major or above:

(i) Forfeiture of [pay of] not more than [two-thirds] one-half of one month’s active duty base pay for two months;

(ii) Reduction to the lowest or any intermediate pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades;

(iii) [The punishment authorized under subparagraph (C) of this paragraph] Extra duties, including fatigue or other duties, not to exceed two hours per day, including holidays, for not more than 45 consecutive duty or drill days, the punishment to be completed within 90 days of the date punishment was imposed; [or]

(iv) [The punishment authorized under subparagraph (D) of this paragraph.] Restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive duty or drill days, the punishment to be completed within 90 days of the date punishment was imposed;

(v) Correctional custody for not more than seven consecutive duty or drill days, the punishment to be completed within 90 days of the date punishment was imposed; or

(vi) Detention of not more than one-half of one month’s active duty base pay for three months.

(3) No two or more of the punishments of arrest in quarters, extra duties, and restriction may be combined to run consecutively in excess of the maximum amount that may be imposed for each. When any of those punishments are combined to run consecutively, there must be an apportionment.

(4) An officer in charge may impose upon enlisted members assigned to the unit of which the officer is in charge such of the punishments authorized under subsection (2)(b)(A), (B), (C), [and] (D), (E) and (F) of this section as the Governor may specifically prescribe by regulation.

(5) The officer who imposes the punishments authorized under subsection (2) of this section, or a successor in command, may, at any time, suspend probationally a reduction in grade or a forfeiture imposed under subsection (2) of this section, whether or not executed. In addition, such officer may, at any time, remit or mitigate any part or amount of the unexecuted punishment and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges and property affected. The officer may also mitigate reduction in grade to forfeiture of active duty base pay. When mitigating an arrest in quarters to restriction or extra duties to restriction, the mitigated punishment shall not be for a greater period than the punishment mitigated. When mitigating reduction in grade to forfeiture of active duty base pay, the amount of the forfeiture shall not be greater than the amount that could have been imposed initially under this section by the officer who imposed the punishment mitigated.

(6) A person punished under this section who considers the punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection (5) of this section by the officer who imposed the punishment. Before acting on an appeal from [a punishment of] any of the following punishments, the authority who is to act on the appeal shall refer the case to a staff judge advocate or legal officer for consideration and advice:

(a) Arrest in quarters for more than seven days;

(b) Correctional custody for more than seven consecutive duty or drill days;

[(b)] (c) Forfeiture of [pay of] more than [two-thirds of one month’s pay for one month] seven days’ active duty base pay; [or]

[(c)] (d) Reduction of one or more pay grades from the fourth or a higher pay grade[,]

[the authority who is to act on the appeal shall refer the case to a staff judge advocate or legal officer for consideration and advice, and may so refer the case upon appeal from any punishment imposed under subsection (2) of this section.];

(e) Extra duties for more than 14 consecutive drill or duty days;

(f) Restriction for more than 14 consecutive drill or duty days; or

(g) Detention of more than 14 days’ active duty base pay.

(7) Except as provided in subsection (6) of this section, before acting on an appeal from any punishment imposed under subsection (2) of this section, the authority who is to act on the appeal may refer the case to a staff judge advocate or legal officer for consideration and advice.

[(7)] (8) The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by court-martial or other legal proceeding for a serious crime or offense growing out of the same act or omission, and not properly punishable under this section; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.

[(8)] (9) Whenever a punishment of forfeiture of pay is imposed under this section, the forfeiture may apply to pay accruing on or after the date that punishment is imposed and to any pay accrued before that date.

[(9)] (10) The Governor or the Adjutant General may, by [rule] regulation, prescribe the form of records to be kept of proceedings under this section and may also prescribe that certain categories of those proceedings shall be in writing.

SECTION 11. ORS 398.104 is amended to read:

398.104. Each component of the organized militia has court-martial jurisdiction over all persons subject to this chapter. The exercise of jurisdiction by one component over personnel of another component shall be in accordance with military department regulations prescribed by the Governor under ORS 396.125 or by the Adjutant General under ORS 396.160.

SECTION 12. ORS 398.106 is amended to read:

398.106. Subject to ORS 398.104, general courts-martial have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter and may, under such limitations as the Governor or the Adjutant General may prescribe, impose any of the following punishments:

(1) A fine of not more than [$200] $500 for each offense or

forfeiture of up to two-thirds of one month’s active duty base pay and allowances for up to three months, whichever is greater;

(2) Forfeiture of pay and allowances during any period of confinement;

(3) Dishonorable discharge, bad-conduct discharge or dismissal;

(4) Reprimand;

(5) Reduction of an enlisted member to the lowest or any intermediate enlisted grade;

(6) Confinement for not more than [200] 365 days for each offense; or

(7) Any combination of these punishments.

SECTION 13. ORS 398.108 is amended to read:

398.108. (1) Subject to ORS 398.104, special courts-martial have jurisdiction to try persons other than officers for any offense made punishable by this chapter.

(2) A special court-martial may, under such limitations as the Governor or the Adjutant General may prescribe, impose any of the following punishments:

(a) A fine of not more than [$200] $250 for each offense or

forfeiture of up to one-half of one month’s active duty base pay and allowances for up to three months, whichever is greater;

(b) Forfeiture of pay and allowances during any period of confinement;

(d) Reprimand;

(e) Reduction of an enlisted member to the lowest or any intermediate enlisted grade;

(f) Confinement for not more than [100 days] 365 days for each offense; or

(g) Any combination of these punishments.

SECTION 14. ORS 398.110 is amended to read:

398.110. (1) Subject to ORS 398.104, summary courts-martial have jurisdiction to try persons other than officers for any offense made punishable by this chapter.

(2) [No] A person with respect to whom summary courts-martial have jurisdiction may not be brought to trial before a summary court-martial if the person objects [thereto, unless the person has been permitted to refuse punishment under ORS 398.083 and has elected to refuse such punishment]. If objection to trial by summary court-martial is made by an accused [who has not been permitted to refuse punishment under ORS 398.083], trial [shall] may be ordered by special or general court-martial, as may be appropriate.

[(3) A summary court-martial may sentence to a fine of not more than $25 for a single offense, to forfeiture of pay and allowances, to reduction of an enlisted member to the lowest enlisted grade or to confinement for not longer than 30 days.]

(3) A summary court-martial may impose the following punishments:

(a) For an enlisted member in a pay grade of E-4 or lower, reduction to the lowest or any intermediate pay grade and rank;

(b) For a noncommissioned officer, reduction to the next lower pay grade and rank;

(c) Forfeiture of pay and allowances during any period of confinement;

(d) Forfeiture of up to two-thirds of one month’s active duty base pay;

(e) A fine not exceeding $25 for each offense;

(f) Confinement not exceeding 30 days; or

(g) Any combination of these punishments.

SECTION 15. ORS 398.112 is amended to read:

398.112. In the organized militia not in federal service:

(1) A sentence of dismissal or dishonorable discharge may not be executed until the sentence is approved by the Governor; and

(2) A sentence of bad-conduct discharge may not be executed until the sentence is approved by the [Governor or by the] Adjutant General.

SECTION 16. Sections 17 and 18 of this 2005 Act are added to and made a part of ORS chapter 398.

SECTION 17. Upon the conditions and with the restrictions and limitations as the Governor thinks proper, the Governor may grant commutations and pardons for all punishments imposed under this chapter by a general court-martial or a special court-martial and may remit all forfeitures and fines imposed under ORS 398.106 or 398.108.

SECTION 18. (1) When a person subject to this chapter makes an application for commutation or pardon to the Governor, a copy of the application, signed by the applicant and stating fully the grounds of the application, shall be served by the applicant upon:

(a) The convening authority; and

(b) If the applicant is in confinement, the person in charge of the place of confinement.

(2) The applicant shall present to the Governor proof by affidavit of the service.

(3) Upon receiving a copy of the application for commutation or pardon, the convening authority shall provide to the Governor, as soon as practicable, the information and records relating to the case as the Governor may request and any other information and records relating to the case that the convening authority considers relevant to the issue of commutation or pardon.

(4) Following receipt by the Governor of an application for commutation or pardon, the Governor may not grant the application for at least 30 days. Upon the expiration of 180 days following receipt of an application, if the Governor has not granted the commutation or pardon applied for, the application shall lapse. Any further proceedings for commutation or pardon in the case shall be pursuant only to further application and service.

SECTION 19. ORS 398.126 is amended to read:

398.126. In the organized militia not in federal service, general courts-martial may be convened [by the President or] by the Governor or by the Adjutant General.

SECTION 20. ORS 398.132 is amended to read:

398.132. (1) Any commissioned officer of the organized militia is eligible to serve on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial.

(2) Any warrant officer of the organized militia is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought before such courts for trial.

(3)(a) Any enlisted member of the organized militia who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member who may lawfully be brought before such courts for trial, but shall serve as a member of a court only if, before the conclusion of a session called by the military judge under ORS 398.209, prior to trial or, in the absence of such a session, at least 30 days before the court is assembled for the trial of the accused, the accused personally or through counsel has requested in writing that enlisted members serve on it. After such a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court may be convened and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained.

(b) As used in this subsection, “unit” means any regularly organized body of the organized militia not larger than a company, a squadron or a corresponding body.

(4)(a) When it can be avoided, no person subject to this chapter shall be tried by a court-martial any member of which is junior to the person in rank or grade.

(b) When convening a court-martial, the convening authority shall detail as members thereof such members of the organized militia as, in the opinion of the convening authority, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of the organized militia is eligible to serve as a member of a general or special court-martial when the member is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case.

(5) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. The convening authority may delegate any authority under this subsection to the State Judge Advocate or designee.

SECTION 21. ORS 398.135 is amended to read:

398.135. (1) The authority convening a general court-martial or the State Judge Advocate shall detail a military judge to the general court-martial. Subject to [rules of] regulations issued by the Governor or the Adjutant General, the authority convening a special court-martial or the State Judge Advocate may detail a military judge to the special court-martial. A military judge shall preside over each open session of the court-martial to which the judge has been detailed.

(2) A military judge shall be a commissioned officer of the organized militia or of any of the Armed Forces of the United States, be a member of the bar of the highest court of a state or a member of the bar of a federal court and be certified to be qualified for such duty by the State Judge Advocate.

(3) The military judge of a general or special court-martial shall be designated by the State Judge Advocate, or designee, for detail by the convening authority, and, unless the court-martial was convened by the Governor or the Adjutant General, neither the convening authority nor any member of the staff of the convening authority shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to performance of duty as a military judge.

(4) [No] A person is not eligible to act as a military judge in a case if the person is the accuser or a witness for the prosecution or has acted as investigating officer or as a counsel in the same case.

(5) The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel, and defense counsel, nor may the military judge vote with members of the court.

SECTION 22. ORS 398.136 is amended to read:

398.136. (1) For each general and special court-martial the staff judge advocate for the unit, command or organization shall detail trial counsel and such assistants as the staff judge advocate considers appropriate. The State Judge Advocate shall detail defense counsel. [No] A person who has acted as investigating officer, military judge or court member in any case may not act later as trial counsel, assistant trial counsel or, unless expressly requested by the accused, as defense counsel or assistant defense counsel in the same case. [No] A person who has acted for the prosecution may not act later in the same case for the defense, nor may any person who has acted for the defense act later in the same case for the prosecution.

(2) Trial counsel or defense counsel detailed for a general court-martial must be:

(a) A judge advocate qualified under the Uniform Code of Military Justice; or

[(a)] (b) A person who is:

(A) A member of the Oregon State Bar [of the highest court of this state], or a member of the bar of a federal court or an attorney allowed under ORS 9.241 to practice before a court of this state; and

[(b)] (B) Certified as competent to perform such duties by the State Judge Advocate.

(3) In the case of a special court-martial:

(a) If the trial counsel is qualified to act as counsel before a general court-martial, the defense counsel detailed by the State Judge Advocate must be a person similarly qualified; and

(b) If the trial counsel is a member of the Oregon State Bar [of the highest court of this state], the defense counsel detailed by the State Judge Advocate must have the same qualifications.

SECTION 23. ORS 398.224 is amended to read:

398.224. (1) Any person not subject to this chapter is guilty of an offense against the state when the person:

(a) Has been duly subpoenaed to appear as a witness before a court-martial, court of inquiry or any other military court or board, or before any military or civil officer designated to take a deposition to be read in evidence before such a court, commission or board;

(b) Has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending the circuit court of the state in ORS 44.415 (2); and

(c) Willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce.

(2) Any person who commits an offense described in subsection (1) of this section shall be tried before the circuit court or judge thereof of the county where the offense occurred, and exclusive jurisdiction is conferred upon those courts for such purpose. Upon conviction, such a person shall be punished by a fine of not more than [$500] $2,500, or imprisonment for not more than six months, or both.

(3) The district attorney of the county in which the offense occurred, upon certification of the facts by the military court, court of inquiry or board, shall prosecute any person who commits the offense described in subsection (1) of this section. The fine shall be deposited in the General Fund of the State Treasury, to be available for general governmental expenses.

SECTION 24. ORS 398.226 is amended to read:

398.226. (1) A military court may punish for contempt any person who uses any menacing word, sign or gesture in its presence, or who disturbs its proceedings by any riot or disorder. The punishment may not exceed confinement for 30 days or a fine of $100, or both.

(2) A military court shall have the contempt power possessed by a civilian court as provided under ORS 33.015 to 33.155.

(3) A person found in contempt under this section and ordered confined may be confined in a county jail upon written order of the military judge.

(4) A person ordered confined under this section may be delivered to the civilian authority by a military or civilian law enforcement authority.

(5) The county jail may not charge the Oregon Military Department or the state for the costs of a person’s confinement under this section.

SECTION 25. ORS 398.258 is amended to read:

398.258. (1) A sentence of confinement adjudged by a military court, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place of confinement under the control of any of the forces of the organized militia or in any jail, penitentiary or prison designated for that purpose. Persons so confined in a jail, penitentiary or prison are subject to the same discipline and treatment as persons confined or committed to the jail, penitentiary or prison by the courts of the state or of any political subdivision thereof.

(2) The keepers, officers and wardens of [city or] county jails [and of other jails], penitentiaries or prisons designated by the Governor, or by such person as the Governor may authorize to act under ORS 398.060, shall receive persons ordered into confinement before trial and persons committed to confinement by a military court and shall confine them according to law.

(3) A person confined under this section shall have the status of a priority prisoner as defined in ORS 398.058 and may be released only upon order of a military court.

(4) [No such] A keeper, officer or warden [may] described in subsection (2) of this section may not require payment of any fee or charge for [so] receiving or confining a person under this section.

SECTION 26. ORS 398.302 is amended to read:

398.302. A person may not be tried or punished for any offense provided for in ORS 398.304 to 398.388, unless:

(1) The offense was committed while the person was in a duty status during a period of time in which the person was under lawful orders to be in a duty status; or

(2) The offense charged has a connection with the military duties of the person. For purposes of this subsection, the required connection with military duties is conclusively established for offenses for which there is no equivalent offense in the general criminal laws of this state and for offenses involving [personal] wrongful use, possession, manufacture, distribution or introduction of [illegal or controlled substances] a substance described in ORS 398.391 (2) in violation of ORS 398.391.

SECTION 27. ORS 181.539 is amended to read:

181.539. (1) Upon the request of the Teacher Standards and Practices Commission, the Department of Education or the Oregon Military Department, the Department of State Police shall furnish to the authorized staff of the Teacher Standards and Practices Commission, the Department of Education or the Oregon Military Department, whichever is appropriate, such information on a subject individual as the Department of State Police may have in its possession from its central bureau of criminal identification, including but not limited to manual or computerized criminal offender information.

(2)(a) Subsequent to furnishing the information required under subsection (1) of this section, the Department of State Police shall conduct nationwide criminal records checks of the subject individual through the Federal Bureau of Investigation by use of the subject individual’s fingerprints and shall report the results to the staff of the requesting agency, who must be specifically authorized to receive the information.

(b) The Federal Bureau of Investigation shall either return or destroy the fingerprint cards used to conduct the criminal records check and shall not keep any record of the fingerprints. However, if the federal bureau policy authorizing return or destruction of the fingerprint cards is changed, the department shall cease to send the cards to the federal bureau but shall continue to process the information through other available resources.

(c) If the Federal Bureau of Investigation returns the fingerprint cards to the Department of State Police, the department shall return the fingerprint cards to the requesting agency. Upon receiving fingerprint cards under this paragraph, the requesting agency shall destroy the fingerprint cards and shall retain no facsimiles or other material from which a fingerprint can be reproduced.

(3) For purposes of requesting and receiving the information and data described in subsections (1) and (2) of this section, the Teacher Standards and Practices Commission, the Department of Education and the Oregon Military Department are designated agencies for purposes of ORS 181.010 to 181.560 and 181.715 to 181.730.

(4) Nothing in this section shall be considered to require a subject individual as described in subsection (5)(d)(D), (E) or (I) of this section to submit to fingerprinting until the individual has been offered employment or a contract by a school district or private school. Contractor employees shall not be required to submit to fingerprinting until the contractor has been offered a contract.

(5) As used in this section:

(a) “Private school” means a school that provides educational services as defined in ORS 345.505 and is registered as a private school under ORS 345.505 to 345.575.

(b) “Requesting agency” means whichever agency requested the criminal offender information under subsection (1) of this section.

(A) A school district as defined in ORS 330.003.

(B) The Oregon State School for the Blind.

(D) An educational program under the Youth Corrections Education Program.

(E) A public charter school as defined in ORS 338.005.

(F) An education service district.

(d) “Subject individual,” for purposes of requests made by the Teacher Standards and Practices Commission or the Department of Education, means:

(A) An individual who is applying for initial issuance of a license under ORS 342.120 to 342.430 as a teacher, administrator or personnel specialist if the individual has not submitted to a criminal records check within the previous year with the Teacher Standards and Practices Commission.

(B) An individual who is applying for reinstatement of a license as a teacher, administrator or personnel specialist whose license has lapsed for at least three years.

(D) A school district or private school contractor, whether part-time or full-time, or an employee thereof, whether part-time or full-time, who has direct, unsupervised contact with students as determined by the district or private school.

(E) An individual newly hired, whether part-time or full-time, by a school district or private school in a capacity not described in subparagraphs (A) to (C) of this paragraph who has direct, unsupervised contact with children as determined by the district or private school.

(F) An individual employee, whether part-time or full-time, of a school district or private school in a capacity not described in subparagraphs (A) to (C) of this paragraph who has direct, unsupervised contact with children as determined by the district or private school.

(G) An individual who is registering with the Teacher Standards and Practices Commission for student teaching, practicum or internship as a teacher, administrator or personnel specialist, if the individual has not submitted to a criminal records check within the previous year with the Teacher Standards and Practices Commission for student teaching, practicum or internship as a teacher, administrator or personnel specialist.

(H) An individual who is a community college faculty member providing instruction at a kindergarten through grade 12 school site during the regular school day.

(I) An individual who is an employee of a public charter school.

(J) An individual who is applying for initial issuance of a registration as a public charter school teacher under ORS 342.125.

(e) “Subject individual” does not include an individual described in paragraph (d)(D), (E), (F), (H) or (I) of this subsection if the individual or the individual’s employer was checked in one school district or private school and is currently seeking to work in another district or private school unless the individual lived outside this state during the interval between the two periods of time of working in the district or private school.

(f) “Subject individual,” for purposes of requests made by the Oregon Military Department, means:

(A) An individual who is applying for or is employed in a position in a job category for which a statewide and nationwide criminal records check is a job qualifier and in which personnel:

[(A)] (i) Are assigned to the at-risk youth alternative education program;

[(B)] (ii) Are issued firearms and munitions;

[(C)] (iii) Have fiscal and purchasing responsibilities as their primary responsibilities; or

[(D)] (iv) Have regular access to restricted areas within a military installation.

(B) An individual who is applying to join the organized militia of this state, as described in ORS 396.105, or is a member of the organized militia of this state.

SECTION 28. Section 29 of this 2005 Act is added to and made a part of ORS chapter 398.

SECTION 29. (1) There is established within the Oregon Military Department the Armed Forces Court of Appeals for Oregon.

(2) The court shall have jurisdiction over appeals properly brought under regulations adopted by the Adjutant General.

(3) The Adjutant General shall appoint three persons who shall serve as judges on the court. The persons appointed shall serve without compensation.

(4) One person shall be Chief Judge and two persons shall be Associate Judges. The Chief Judge shall be selected by the three judges. The selection shall be subject to the approval of the Adjutant General.

(5)(a) Appointments shall be for a term of six years, except that the initial appointments of the judges shall be for the following terms:

(A) One judge shall serve a two-year term.

(B) One judge shall serve a four-year term.

(C) One judge shall serve a six-year term.

(b) The term of office of any successor judges shall be six years, but any judge appointed to fill a vacancy occurring prior to the expiration of the term for which the judge’s predecessor was appointed shall be appointed only for the unexpired term of the predecessor.

(c) Any person appointed to a full or partial term on the court, unless otherwise disqualified, shall be eligible for reappointment.

(6) A person is eligible for appointment to the court if the person:

(a) Is a member of the Oregon State Bar and admitted to practice before the highest court of this state;

(b) Is a former commissioned officer of the Armed Forces of the United States (regular, reserve or National Guard), or a former or current member of the Oregon State Defense Force; and

(c) Has at least:

(A) Five years’ experience as an officer in the Judge Advocate General’s Corps; or

(B) 15 years’ experience in the Judge Advocate Branch of the Oregon State Defense Force.

(7) Judges of the court may be removed by the Adjutant General, upon notice and hearing, for neglect of duty or malfeasance in office or for mental or physical disability, but for no other cause.

(8) If a judge of the court is temporarily unable to perform the judge’s duties due to mental or physical disability, the Adjutant General may designate another person eligible for appointment to the court to fill the office for the period of disability.

(9) The Oregon Military Department shall be responsible for reimbursement and funding of all usual travel and per diem expenses of the judges.

(10) The Adjutant General shall adopt regulations to govern appellate procedure before the court. The regulations shall be substantially similar to the provisions for post-trial procedure and review of courts-martial under the Uniform Code of Military Justice.

SECTION 30. ORS 183.315 is amended to read:

183.315. (1) The provisions of ORS 183.410, 183.415, 183.425, 183.440, 183.450, 183.452, 183.458, 183.460, 183.470 and 183.480 do not apply to local government boundary commissions created pursuant to ORS 199.425 or 199.430, the Department of Revenue, State Accident Insurance Fund Corporation, Department of Consumer and Business Services with respect to its functions under ORS chapters 654 and 656, Psychiatric Security Review Board or State Board of Parole and Post-Prison Supervision.

(2) This chapter does not apply with respect to actions of the Governor authorized under ORS chapter 240 and ORS 396.125 or actions of the Adjutant General authorized under ORS 396.160 (14).

(3) The provisions of ORS 183.410, 183.415, 183.425, 183.440, 183.450, 183.452, 183.458 and 183.460 do not apply to the Employment Appeals Board or the Employment Department.

(4) The Employment Department shall be exempt from the provisions of this chapter to the extent that a formal finding of the United States Secretary of Labor is made that such provision conflicts with the terms of the federal law, acceptance of which by the state is a condition precedent to continued certification by the United States Secretary of Labor of the state’s law.

(5) The provisions of ORS 183.415 to 183.430, 183.440 to 183.460, 183.470 to 183.485 and 183.490 to 183.500 do not apply to orders issued to persons who:

(a) Have been committed pursuant to ORS 137.124 to the custody of the Department of Corrections or are otherwise confined in a Department of Corrections facility; or

(b) Seek to visit an inmate confined in a Department of Corrections facility.

(6) ORS 183.410, 183.415, 183.425, 183.440, 183.450, 183.460, 183.470 and 183.480 do not apply to the Public Utility Commission.

(7) The provisions of this chapter do not apply to the suspension, cancellation or termination of an apprenticeship or training agreement under ORS 660.060.

(8) The provisions of ORS 183.413 to 183.497 do not apply to administrative proceedings conducted under rules adopted by the Secretary of State under ORS 246.190.

SECTION 31. ORS 399.515 is amended to read:

399.515. This section and ORS 398.006, 398.008, 398.052, 398.083, 398.132, 398.136, 398.204, 398.252, 398.302 to 398.388, 398.404 and 399.205 shall be carefully explained to every enlisted member at the time of enlistment or transfer or induction into, or at the time of an order to duty in or with any of the forces of the organized militia or within 30 days thereafter. They shall also be explained annually to each unit of the organized militia. A complete text of ORS chapter 398 and ORS 399.205, [and] of the military department regulations prescribed by the Governor thereunder and of the regulations issued by the Adjutant General under ORS 396.160 and section 29 of this 2005 Act, shall be made available to any member of the organized militia, upon request, for personal examination.

SECTION 32. Section 33 of this 2005 Act is added to and made a part of ORS chapter 398.

SECTION 33. (1) A charge against a person subject to this chapter for an offense that is classified as a Class A felony under the Oregon Criminal Code shall first be presented by the convening authority to a prosecuting civilian authority with jurisdiction over the offense for possible prosecution.

(2) If the prosecuting civilian authority declines to prosecute or fails to respond within 90 days from presentation of the charge, the charge may then be prosecuted as provided in this chapter.

SECTION 34. ORS 396.305 is amended to read:

396.305. (1) The Oregon Military Department is established. The department, under the direction of the Governor, shall be responsible as provided in this chapter and ORS chapters 398 and 399 for the supervision of the military affairs of the state.

(2) The military department shall prepare and promulgate necessary [rules and] regulations for the organization, [government] governance, armament, equipment, training and compensation of the militia of the state in conformity with the provisions of this chapter, ORS chapters 398 and 399 and the laws of the United States. [Rules and] Regulations so made shall be subject to the approval of the Governor.

(3) The military department shall make such changes in the military organization of the Oregon National Guard as are necessary from time to time to conform to the requirements of the laws of the United States and the directives of the National Guard Bureau.

(4) The military department shall fix the location of the units and headquarters of the Oregon National Guard, and shall, subject to the approval of the National Guard Bureau, transfer, attach, consolidate or inactivate any organization or unit when in its judgment the efficiency of the present organization will be increased thereby.

(5) The military department shall have the power to establish awards and decorations and to approve the design therefor.

SECTION 35. ORS 396.360 is amended to read:

396.360. (1) The Oregon Military Department may adopt reasonable policies or procedures for any program operated by the military department for at-risk youth where attendance by at-risk youth is voluntary. The policies or procedures adopted by the military department may include but are not limited to drug testing policies designed to ensure that a person enrolled in the program is not engaging in unlawful drug use.

(2) The military department may adopt policies or procedures pursuant to subsection (1) of this section by [rule] regulation or may provide notice of policies or procedures to at-risk youth prior to enrollment in the program.

(3) The results of any drug test performed pursuant to this section shall be used solely for the purpose of determining eligibility for enrollment or continuing attendance in the program and shall not be used against the person in any criminal prosecution.

SECTION 36. ORS 398.062 is amended to read:

398.062. (1) [No provost marshal, commander of a guard, master at arms,] A warden, keeper or officer of a [city or] county jail [or any other jail], penitentiary or prison designated under ORS 398.060, may not refuse to receive or keep any prisoner committed to the charge of the person, when the committing person furnishes a statement, signed by the committing person, of the offense charged against the prisoner.

(2) Every [commander of a guard, master-at-arms,] warden, keeper or officer of a [city or] county jail [or of any other jail], penitentiary or prison designated under ORS 398.060, to whose charge a prisoner is committed shall, within 24 hours after that commitment [or as soon as the person is relieved from guard], report to the commanding officer of the prisoner the name of the prisoner, the offense charged against the prisoner, and the name of the person who ordered or authorized the commitment.

SECTION 37. ORS 398.116 is amended to read:

398.116. A general or special court-martial convened for the trial of a person charged with committing an offense after the declaration of a war or national emergency and before the time when the person is brought under the jurisdiction of the [United States] Uniform Code of Military Justice, [(chapter 47, title 10, United States Code),] may, upon conviction, adjudge such punishment as may be appropriate, except that it may not exceed that authorized for a similar offense by the [United States] Uniform Code of Military Justice.

SECTION 38. ORS 398.209 is amended to read:

398.209. (1) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to ORS 398.172, call the court into session without the presence of the members for the purpose of:

(a) Hearing and determining motions, raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;

(b) Hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members of the court;

(c) If permitted by [rules of] regulations issued by the Governor or the Adjutant General, holding the arraignment and receiving the pleas of the accused; and

(d) Performing any other procedural function which may be performed by the military judge under this chapter or under [rules] regulations prescribed pursuant to ORS 398.202 and which does not require the presence of the members of the court.

(2) These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record.

(3) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and in cases in which a military judge has been detailed to the court, the military judge.

SECTION 39. ORS 398.282 is amended to read:

398.282. (1) If the convening authority is the Governor, action by the Governor on the review of any record of trial is final.

(2) In all other cases not covered by subsection (1) of this section, if the sentence of a special court-martial as approved by the convening authority includes a dishonorable discharge, whether or not suspended, the entire record shall be sent to the appropriate judge advocate of the state force concerned to be reviewed in the same manner as a record of trial by general court-martial. The record and the opinion of the judge advocate shall then be sent to the State Judge Advocate for review.

(3) All other special and summary court-martial records shall be sent to the judge advocate of the appropriate force of the organized militia and shall be acted upon, transmitted, and disposed of as may be prescribed by the Governor.

(4) The State Judge Advocate shall review the record of trial in each case sent to the State Judge Advocate for review as provided under subsection (2) of this section. If the final action of the court-martial has resulted in an acquittal of all charges and specifications, the opinion of the State Judge Advocate shall be limited to questions of jurisdiction.

(5) The State Judge Advocate shall take final action in any case reviewable by the State Judge Advocate.

(6) In a case reviewable by the State Judge Advocate under this section, the State Judge Advocate may act only with respect to the findings and sentence as approved by the convening authority. The State Judge Advocate may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the State Judge Advocate finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record the State Judge Advocate may weigh the evidence, judge the credibility of witnesses and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. If the State Judge Advocate sets aside the findings and sentence, the State Judge Advocate may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If the State Judge Advocate sets aside the findings and sentence and does not order a rehearing, the State Judge Advocate shall order that the charges be dismissed.

(7) In a case reviewable by the State Judge Advocate under this section, the State Judge Advocate shall instruct the convening authority to act in accordance with the State Judge Advocate’s decision on the review. If the State Judge Advocate has ordered a rehearing but the convening authority finds a rehearing impracticable, the State Judge Advocate may dismiss the charges.

(8) The State Judge Advocate may order one or more boards of review each composed of not [less] fewer than three commissioned officers of the organized militia, each of whom must be a member of the Oregon State Bar [of the highest court of the state]. Each board of review shall review the record of any trial by special court-martial referred to it by the State Judge Advocate. Boards of review have the same authority on review as the State Judge Advocate has under this section.

SECTION 40. ORS 398.416 is amended to read:

398.416. The Governor may delegate any authority vested in the Governor under this chapter, and may provide for the subdelegation of any such authority, except with respect to the power given the Governor by ORS 398.112 and 398.126 and section 17 of this 2005 Act.

SECTION 41. ORS 399.095 is amended to read:

399.095. (1) There shall be paid to each unit of the organized militia such amount within funds available as the Adjutant General may determine, not in excess of $2,000 a year, for care of state and federal property or other necessary military expenses not otherwise provided for, including rent of armories as follows:

(a) Upon certificate of the Adjutant General or the person designated by the Adjutant General that a unit of the organized militia is fully organized and has complied with the military laws and regulations during the preceding three months, the Oregon Department of Administrative Services shall draw a warrant quarterly on the State Treasurer to the commander of the unit in the amount designated in the certificate.

(b) Whenever any unit is divided into two separate parts and stationed at different localities, an additional sum of $300 per year may be paid to such unit, and the total sum shall be divided and apportioned between the two parts by the Adjutant General, and the Oregon Department of Administrative Services shall draw warrants accordingly.

(2) A custodian of a Unit Headquarters Fund may maintain a checking account in any financial institution authorized to do business in Oregon if the financial institution is also authorized to provide checking account services and has its accounts insured by the Federal Deposit Insurance Corporation or other similar federal agency which insures financial institutions. All moneys for a Unit Headquarters Fund shall be deposited, spent and accounted for according to [rules and] regulations adopted and published by the Oregon Military Department.

SECTION 42. ORS 398.302, 398.391, 398.393, 398.394, 398.395, 398.397, 398.399 and 398.400 are added to and made a part of ORS 398.304 to 398.388.

SECTION 43. The amendments to ORS 398.012 by section 7 of this 2005 Act apply to appointments made on or after the effective date of this 2005 Act.

SECTION 44. The amendments to ORS 398.058, 398.083, 398.106, 398.108 and 398.110 by sections 8, 10, 12, 13 and 14 of this 2005 Act apply to conduct that occurs on or after the effective date of this 2005 Act.

SECTION 45. The amendments to ORS 398.136 by section 22 of this 2005 Act apply to trial counsel or defense counsel detailed on or after the effective date of this 2005 Act.

SECTION 46. Sections 17 and 18 of this 2005 Act apply to punishments imposed before, on or after the effective date of this 2005 Act.

SECTION 47. If the Adjutant General adopts regulations for the organization, discipline and governance of the organized militia, the Adjutant General shall specify in the regulations a date on which the regulations become operative for the purposes of all conduct occurring on or after the specified date. The provisions of ORS chapters 396, 398 and 399 do not apply to any conduct occurring on or after the specified date.

SECTION 48. This 2005 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2005 Act takes effect on its passage.

Approved by the Governor July 15, 2005

Filed in the office of Secretary of State July 15, 2005

Effective date July 15, 2005

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